Tag Archives: punishment

Canada Doesn’t Need to Fix Its Justice System: It Needs a New One

This article was published in the Huffington Post on May 1, 2017

How do you reform Canada’s criminal justice system? Canadian Justice Minister Jody Wilson-Raybould and her provincial and territorial counterparts held an urgent meeting on April 28 to discuss “priority responses to further reduce delays in the criminal justice system.”

There was scant information available to the public about the meeting. It appears, however, that there was no agreement on any substantive solutions. All we know is that several key areas face some kind of revision. Mandatory minimums, the bail process, the reclassification of offences and the administration of justice all seem to be on the table. Sadly, the reckless elimination of preliminary inquiries is also still an option.

The ministers have gone so far, it seems, to label their efforts as “transformational” — at least that is how their objectives are described in the Canadian Intergovernmental Secretariat News Release.

Indeed, depending on what is proposed, many of the prospective changes are necessary.

Necessary, but ultimately inadequate. Necessary but insufficient in resolving the inefficiency, the delays and the inhumanity of our criminal justice system. Necessary, but not “transformational.”

That is because what our criminal justice system needs is not mere fixes that further entrench the status quo and the adversarial, punishment-oriented and individualistic process we have now, but true transformational change. We need transformational change that will not only dramatically reduce delays and backlogs in our criminal justice system, but will revolutionize it to make it more meaningful to both victims and offenders.

The most imperative of these transformative options is the mainstream implementation of restorative justice. Restorative justice is a process that brings together (in appropriate cases) the offender, the victim and their supporters with highly trained and professional facilitators for one or more meetings, usually conducted in a circle. During these encounters, the victims tell their story, describe how the offence impacted them and seek answers from the offender. In turn, the offender listens, and relates his or her own story. The focus is on “why” rather than on “who,” and on healing rather than on punishment. The group often works together to find a resolution, not a punishment.

By and large, restorative justice works. There is plenty of proof, including in Public Safety Canada’s own records, that restorative justice is a better alternative to our system. It helps victims recover more quickly from post-traumatic stress disorder. It sometimes results in collaboration between the offender, the victim and the connected community to assist both the offender and the victim move forward. It holds offenders accountable and gives them a better chance at moving in a more positive direction.

And restorative justice seems to reduce recidivism. This is all in stark contrast to the impact of our current criminal justice system: costly, dehumanizing and generally ineffectual in rehabilitation, reintegration, and in reducing recidivism.

Rather than have accused persons (and victims) go through a harsh, degrading and impersonal court process and face a punitive, overly individualistic response, we should bring both willing accused and willing victims into the restorative justice process at the earliest possible stage. We should replace our adversarial, punishment-oriented system with restorative justice — and not simply at the sentencing stage, which is where the dearth of our restorative justice activity lies now.

While replacing our court process with a restorative process would be transformative and revolutionary for our western notion of justice, restorative justice, itself, is not revolutionary. It has its roots in many Indigenous communities. It has been tried, in one form or another, in other jurisdictions, from England to New Zealand (where restorative justice has replaced the adversarial system for youth since 1989), and on a smaller, more timid scale across various parts of Canada, as a part of the sentencing process.

Other solutions, such as reducing the number of charges laid and the number of cases that wind their way through the courts, eliminating solitary confinement, and keeping the mentally ill out of the criminal justice system are essential and will also significantly make the criminal justice system more just, more efficient and less costly. Yet none of these appear to have formed part of the discussion of our ministers of justice last Friday. Ultimately, no other “fix” will be as transformational as restorative justice.

Restorative justice is such a meaningful response to our criminal justice woes that any other solution pales in comparison. More judges, more Crown attorneys, eliminating preliminary inquiries… they are all diversions. They are Band-Aid solutions implemented when we (and our elected officials in particular) lack the will to confront the foundational challenges to our notion of justice and the courage to implement transformational change.

Our ministers of justice will be looking for fixes to our broken justice system. Instead, they should focus on creating a new one. A truly just justice system.

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Harper’s Crime and Punishment Agenda: The Top Most Offensive (and Destructive) Laws

It feels like a week does not go by without the Harper government’s introduction of a new law or initiative purportedly aimed at making our “streets and communities safe.”  Rather than make us safer, however, these crime and punishment laws are leading us toward disaster.

Criticism by the public and experts to these moralistically-named bills has been loud, clear, and supported by evidence.  With a majority in Parliament, however, the Conservatives see little value in listening to the sage advice and admonishments of Canadians.

A complete list of all the bills and changes would go well into the hundreds.  Instead, here is a quick reference of some of the most significant and damaging laws enacted by the Harper government:

1.        The  “Tackling Violent Crimes Act sounds like a story title from a Marvel comic strip, but it’s the Haper government’s one-size fits all answer to crime: “Jail everybody.  Jail them longer.”

The more prisons “solution,” is combined with the government’s utter failure to do anything constructive to address the causes of crime, or to address the fact that overcrowding in prisons and that incarceration result in much violence and increased recidivism.[i]

A portion of this legislation quickly became the subject of a Charter application in R. v. Smickle.   In that case, Leroy Smickle, a young man with no criminal record, was alone one evening at his cousin’s home (he had not joined his cousin to go out as he had work the next day), in his boxers and undershirt, while holding the gun he found at the residence.  He was foolishly posing with the gun for a Facebook picture in front of a computer that was on his lap, when the cops burst in, with the intention of arresting the cousin.   For his foray into showing off a gun to no live persons, he faced a minimum jail sentence of 3 years, if convicted.

The trial court struck down the portion of the law that left an accused person open to this kind of harsh sentence for a first offence for an act that posed a danger to no one (but the accused).

The Crown has appealed the case.  The appeal is being heard as I write this article.  So the fate of the accused and the law are yet undetermined and uncertain.

What is certain to all who are familiar with the evidence, however, is this: jail sentences and higher jail sentences not only do not reduce crime and recidivism, but in some cases they actually increase the likelihood of recidivism.

2.        The deceptively-named Truth in Sentencing Act”   came into force on February 22, 2010.

Prior to the enactment of this law, sentencing judges in some jurisdictions counted an offender’s pre-trial custody time as more than 1:1.  There were good reasons for this.

Conditions in pretrial detention centres are notoriously worse than those where inmates serve their sentences: overcrowding, sleeping on floors within inches of dysfunctional toilet bowls, an absence of educational or counselling programs, lengthy lock-downs which keep inmates in cells for 20-24 hours a day, unsanitary conditions that expose prisoners to disease, the legal and moral problems with incarcerating people when they have not even been found guilty, and the psychological ramification of awaiting a trial while in custody.  Judges, who observed the recurrence of these harsh conditions concluded that it was necessary to count pre-trial detention as more than 1:1.

But the Conservatives contended that when courts granted someone 2 for 1 credit for pre-trial custody, they were misleading the public as to the actual sentence.  They felt that they had to step in to make judges and the criminal justice system more “honest.” So the law essentially prohibits judges from counting pre-trial custody as more than 1:1 when sentencing an offender.

In passing this legislation, however, the Conservatives not only removed judicial discretion in sentencing –an act which they have repeated many times since 2010—but they also hid from the public the truth about jails, jail conditions, and the factors that judges consider when they determine the appropriate sentence for someone.

The result is greater overcrowding in our jails, unjust discrepancies in sentencing, and even less accountability for the shameful conditions in some of our jails.

The law results in greater unfairness since, because of our parole laws, persons who have spent time in pre-trial custody (often because they don’t have the resources or the community support to get bail), will end up serving a longer jail term for the same offence, when compared to those who received the exact same sentence, but had been out on bail before their trial.  Most Canadians would deem this discrepancy unfair.  But this is, in fact, the result of the Truth in Sentencing Act.

Then things got worse.

Soon after they gained their majority in the legislature, the Harper government rolled all their various crime bills into one giant Omnibus bill, called the “Safe Streets and Communities Act,” or Bill C-10.  The many offensive portions of this bill came into force at different times during the last year.

The next  5 items are the poisonous branches of the Omnibus tree.

3. Increased sentences and mandatory minimum sentences for a range of drug offences:

The most criticized portion of this bill is that which subjects a person who grows 5 or more cannabis plants to a maximum jail sentence of 6 months or 5 years, depending on a number of legal factors.

One more pot and you could go to jail for at least a year

One more pot and you could go to jail for at least a year (from http://www.cannabizz.com)

 

The evidence that the war on drugs is destructive and a failure is abundant.  Many people who were once advocates of the war on drugs warn that we must change how we deal with the presence of drugs in our society, and have spoken out against these futile and destructive measures.  (See the Sundance Film Festival Grand Jury Winner documentary film, The House I Live In by Eugene Jarecki. http://www.youtube.com/watch?v=a0atL1HSwi8 )

4.  The removal of conditional sentences (generally known as house arrest), another Bill C-10 gem:

Until recently, conditional sentences had the support of both Liberals and Conservatives.  They were seen as a cheaper, more effective method of rehabilitation and reintegration of offenders, as a means of ensuring that otherwise safe people could remain employed, remain with their families, and obtain the support that they needed, while being held accountable for their offences.

Conditional sentences recognize a few research-based realities: jails are generally ineffective tools for reducing recidivism; in some cases, jails increase the chances of recidivism; they are costly and unaffordable in society; they are oppressive; and there are better means of advancing societal goals of crime reduction than incarceration.

Judges, who were most familiar with the offender and the circumstances of the offence, could determine whether or not a conditional sentence was suitable for a particular individual.

But Bill C-10 eliminated this sensible option for many offences, including ones such as car theft or the theft of expensive items by first-time offenders.

5.  No Christian forgiveness from a party with strong ties to religion:

Before March of 2012, a person who had been convicted of a crime, but had spent a designated number of years afterward as a law-abiding citizen, could apply for a “pardon.”  If granted, his record would be cleared, his job prospects improved, his contribution to society could be increased.

Now, however, an eligible person can apply, not for a pardon, but for a “record suspension.”  This is more than a mere matter of semantics.  The label tells it all: if you have once been convicted, no matter how long ago the offence was committed, not matter how you have behaved since then, you will never be able to start over clean.

6.        How else can we oppress your stay while you are incarcerated?  Penalize a wider range of conduct while you are in custody.

Bill C-10 has also expanded the range of conduct that could get an inmate into trouble.  One new offence: being “disrespectful toward a person in a manner that is likely to provoke them to be violent.”  You know, like swearing at someone.   Disciplinary offences can lead to a range of consequences, including segregation.

7.   Punish our children more as well:

The crime and punishment ideology extends into the Harper government’s dealings with those who especially need our protection and guidance, young people.  The law places a greater focus on punishment and incarceration in the sentencing of young offenders.

Prior to the enactment of Bill C-10, the focus of sentencing judges in youth court matters was rehabilitation and reintegration of young offenders.  Judges must now, however, focus on denunciation and deterrence.  The principles of denunciation and deterrence generally call for incarceration.  This is a significant departure from Canadian values and government focus over the past few decades, and runs counter to all our knowledge and experience when it comes to how to best deal with young persons who come into conflict with the law.

7.  Make the underlying objectives of the Youth Criminal Justice Act more punitive:

The primary principles underlying our old Y.C.J.A. were to prevent crime by addressing the circumstances underlying a young person’s offences, to rehabilitate and reintegrate them, and to subject the young persons to “meaningful consequences,” all with a view to promote the long-term protection of the public.

The new Act, however, shifts the principles behind the Act, making “protection of the public” and “accountability” the primary focus of the Act.  “Protection of the public” and accountability are generally seen as cues for treatment of young persons, and requiring a greater focus on pre-trial detention.

With Bill C-10 passed and its various portions now being law, the Harper government moved on to other crime legislatin.

8.  Bill C-54, the Bill that sticks it to the mentally ill:

A person who suffered from a major mental disorder at the time of the commission of their crime, in some cases, may be found to be “not criminally responsible.”  Such persons are indefinitely institutionalized, until such time as a panel of experts (a Review Board) determines that these persons no longer pose a significant risk to society and that they have control over their illness.

The Harper government, however, is pushing for longer institutionalization and decreased focus on rehabilitation and reintegration.  Review Boards considering whether or not an NCR person should be released are now to make public safety the “paramount concern.”  Furthermore, they are no longer to impose the least onerous and restrictive conditions during a disposition hearing, but are to impose what is “necessary” and “appropriate.”  The words alone are not harmful, but the message is clear: review boards should shift toward continued institutionalization and should shy away from a measured release of individuals.

The result will not only be greater overcrowding of our mental health institutions, which already lack sufficient resources and function at full capacity, but also greater imprisonment of persons with mental health disorders in our regular prisons, since there will not be sufficient room for them at our mental health institutions.

A bigger prison population. Longer terms of incarceration.  Little to no investment in the kinds of social services and education that can help to reduce crime.  No support for alternatives to the criminal justice system, such as restorative justice.  Others have traveled this road.  And they warn us about the disaster toward which we are quickly heading.

But no matter, the tough talk is still getting votes.  So why let evidence and experience get in the way of ideology?


[i] “Do Sentences of Imprisonment Reduce Reoffending Rates for Either Men or Women?” Criminological Highlights, Volume 13, Number 2 (February 2013) Centre for Criminology and Social Studies, University of Toronto.

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Why Do Convicted Cops Get Lighter Sentences Than the Rest of Us?

The Crown is appealing the sentences of the former Toronto police drug squad officers who were convicted of perjury and obstruction of justice and received 45 day conditional sentences (house arrest) on January 4th of this year.

 If some members of the public reacted to the sentences with incredulity and reproach, it is understandable.

 Incredulity because, after all, perjury and obstruction of justice convictions almost always result in a custodial sentence for most people.  Why not so when police officers, whose role is to uphold the law, are the ones who intentionally mislead or lie to the court and undermine the administration of justice?

 Reproach because the judge appeared to have treated the police officers more favourably than others who are convicted of the same offences.  The judge’s sentence may send a message that police officers, at least when it comes to sentencing, will be given preferential treatment and will receive lighter sentences.

 In fact, most cases of perjury or obstruction of justice which involve lay person accused do lead to long custodial sentences. 

 In R. v. Jackson, a B.C. case, the accused initially received 7 months jail for his perjury charge.  The Court of Appeal increased that sentence to 30 months, and stated that perjury is to be treated seriously because of “its corrosive effect on the proper administration of justice.”

 In an Alberta case involving a relatively less significant case of perjury, the accused, Spath, plead guilty and received a one year jail sentence.

In another Alberta case, R. v. Corbett, a young accused forged a letter of employment for his sentencing and was charged with perjury.  His sentence on the perjury was 12 months jail.  

In a 2000 Ontario Court of Appeal case, R. v. D.(C.)., the accused received a one year prison term for perjury.  The court reinforced that perjury must carry a term of jail, because perjury “strikes at the heart of the administration of justice.”  

 In another Ontario case (R. v. Robinson), this one from 2009, a 46-year-old mother and first-time offender received 8 months for her lie to the court.   

 In a Newfoundland case where an accused, Kendall, lied under oath, the 42-year-old offender, who had no criminal record and whose pre-sentence report said that he was a suitable candidate for a conditional sentence, nonetheless received a 3-month jail term because the judge said that it would be contrary to the fundamental principles of sentencing to give someone a sentence other than jail for perjury.

 Over and over, the courts have emphasized the importance of sending a message to the public that  lying to the court is a serious offence, and that incarceration is warranted in cases of perjury in order to deter the offender and others from lying to the courts, and to denounce the act.

So why did that principle not apply to Steven Correia, Ned Maodus, John Schertzer, Raymond Pollard, and Joseph Miched? 

These (mostly former) officers were convicted of perjury or obstruction of justice, but received a mere 45 day sentence, to be served in the community, which means that they will serve their time mostly at home, with certain restrictions, and a few hours a week allotted for errands.

There are, in fact, cases where a conditional sentence has been granted for perjury.  But such cases are extremely rare.  In the 2006 Ontario case of R. v. Graham, the accused lied at her son’s bail hearing about her address of residence to help him get bail.  When the truth was quickly discovered, she was charged with perjury.  No one was harmed.  This mother of 6 had no criminal record, did not hold a position of trust (as police officers do), was in charge of an 8-year-old who had Downs Syndrome, and herself suffered from some physical ailments.  She did receive a conditional sentence, but in order to ensure that the principle of deterrence was protected, the court gave her a 15 month conditional sentence, plus 100 hours of community service. 

No short 45 day sentence for this woman.

In fact, defence council in the drug squad officers’ case provided the court with several cases where, not surprisingly, police officers had been granted non-custodial sentences for perjury or obstruction of justice.

The Crown is now asking the Court of Appeal to reconsider those 45 day conditional sentences, and to hand down tougher sentences to the officers.  The question for the Court of Appeal will be whether or not the trial judge handed down inappropriate sentences.

If the court were to follow the principle of parity and stay in line with previous cases of perjury and obstruction, it would have to change the sentences to custodial ones.  If it does not do so, the Court will likely try to carve out a niche for very exceptional circumstances where a conditional sentence may be granted, or will simply defer to the trial judge.  Either way, if the Court of Appeal does not change the sentence to a custodial one, the message that officers can get away with lighter legal ramifications will be amplified.

In reality, the judge’s humane and considered approach to sentencing these officers is laudable.  She very carefully considered the police officers’ personal histories, the traumatic impact of the charges on their lives and their families’ lives, and their emotional and psychological states.

 The problem is that we don’t seem to take the same humane, empathetic approach to other offenders who are not officers.

 In a more equitable world, every accused, through his or her lawyer, would have the resources, the skill, and the ability to paint a sympathetic picture of the accused’s suffering in the criminal justice system and the negative and emotional impact of the charges on his life.  Every judge would be able to relate to the accused person, and, while condemning the accused’s actions, would take note of the traumatic effects of the being accused of a crime and the potentially dangerous and horrible effects of being jailed. 

 The result would be less jails and possibly a more effective and humane criminal justice system.

 Alas, we are not ready for that.

 

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